Have you been repeatedly requesting or even pressuring your subordinate for a date? Or have you been ogling, whistling and making sexual comments about your new neighbor’s clothing? Or has a stranger been deliberately brushing against your body in the lift under the pretense of unintentional contact? Are you aware that these conducts constitute sexual harassment? Sexual harassment may not always be readily apparent. Understand what constitutes harassment so that you can stop it before it escalates, whether you are the perpetrator or the victim.
Sexual harassment means any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment. Whilst it may be more common at the workplace, it can occur anywhere, even at the safe haven called home. The perpetrator and the victim may be of any gender. It is important to know that sexual harassment is determined based on the subjective perceptions, feelings and reactions of the recipient. The intention and motive of the perpetrator are irrelevant.
Since October 2017, the #MeToo Movement, a hashtag used on social media to demonstrate the widespread of sexual harassment and sexual assault at the workplace has spread virally to at least 85 countries. The movement has witnessed the unity amongst the victims of sexual assault and sexual harassment to stand up against their perpetrators. It provides a platform which empowers the victims through empathy, to speak up, share their stories, and to create awareness on the magnitude of this prevailing and continuing social problem.
Martin Luther King once said, “Our lives begin to end the day we become silent about things that matter”. Whilst it is recognised that sexual harassment is wrong and cannot be condoned, in reality, not every victim has the luxury of speaking up against the perpetrator. Quite apart from the sense of shame which causes the victims to blame themselves, the victim may fear losing out on a pay rise, an impending promotion or even losing their job. This poses a huge obstacle for the victims to speak up. Hence, instead of reporting the unacceptable and despicable conduct of the perpetrator to the higher authority, they tend to talk discreetly among themselves. They tend to send warnings or signals to their colleagues or others in their circle quietly such as “don’t have a drink with him”, “don’t be alone with him” etc. in an attempt to minimize or prevent the occurrence of the same unwelcomed behavior to others. The fear of repercussions reigns.
By the time a victim has finally summed up enough courage to report being sexually harassed, weeks or months would have passed from the time the unfortunate incident took place. To add salt to the wound, the victim would be censured for taking such a long time to come forward with the torment. It is amazing to see how the tables are turned to perpetuate victim blaming and shaming.
It takes a collective effort for us to fight sexual harassment wherever and however it occurs. We need a systemic change that focuses on the way we can empathize, encourage and better support the victims in their quest for justice and healing. We need to empower the victims to speak up and seek redress against the perpetrators. They need to know that they are not alone. Seeking justice in the Court of law may be one of the ways to offer the victims some form of redress. Perpetrators should be identified and held accountable.
In Malaysia, the Federal Court decision of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor in 2016 has introduced the tort of sexual harassment for the first time as a valid cause of action into our legal and judicial system. The Federal Court allowed the victim’s counterclaim for general and aggravated damages for the emotional and mental stress and trauma suffered by the victim arising from the sexual harassment. The decision has also affirmed that sexual harassment applies to both genders.
From a criminal perspective, although some forms of sexual harassment which amount to “Outrage of Modesty” and “Insult of Modesty” would be caught under Section 354 and 509 of the Penal Code respectively, a specific provision is still lacking to outlaw sexual harassment. The high standard of proving beyond reasonable doubt and reliance on the police to handle the matter also poses difficulties to the victims. Further, Section 509 does not consider the modesty of a man. In today’s society, both genders are equally susceptible to sexual harassment.
Similarly, there are shortcomings in our employment law regime. By virtue of the amendment to the Employment Act 1955 which came into force on 1 April 2012, the victim is now entitled to lodge a complaint to the Employer on the sexual harassment and the Employer is required to investigate accordingly. However, except for the possible disciplinary action by the Employer against the perpetrator, the amendment does not address firstly, the legal rights and remedies of the victim and secondly, the liabilities for the perpetrator in the event that sexual harassment is established. Further, the definition of “sexual harassment” within the context of the Employment Act is only confined to Employer-Employee relationship. In reality, sexual harassment extends beyond the workplace or employment relationship. In such a case, the victims of the sexual harassment will not have any avenue at the workplace to seek redress.
The Malaysian Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“the Code”) serves as a guide for the Employers to establish an in-house mechanism at the enterprise level to prevent and eradicate sexual harassment. Unfortunately, it does not give rise to any legal cause of action for the victims against the perpetrator. Further, the implementation of the Code by the Employers is on a voluntary basis as the Code is merely a guideline and does not have any legal force.
Given the existing inadequacies of the laws and mechanisms to deal with sexual harassment complaints effectively, the judicial activism by the Federal Court in the Mohd Ridzwan’s case is applauded. It is interesting to see the development of case law in this area given the fact that it is both difficult to prove and hard to refute allegations of sexual harassment because different individuals perceive and react to behavior differently.
At the same time, we also look forward to all encompassing reform of laws and mechanisms which includes criminal, employment or civil, to provide adequate remedy to the victims of sexual harassment. A speedier and inexpensive road to justice will certainly offer a little encouragement to the victims of sexual harassment to come forward. Creating more awareness by educating the public on the legal consequences of indulging in sexual harassment and the redress the victims have under the law should also go hand in hand in preventing and controlling the prevalence of sexual harassment.
To the victims who speak up against the perpetrator, you deserve our loud applause for your courage and our compassion for what you have been through. The harasser, and not you, is to be blamed and has to face the consequence of the unsolicited actions. This is the time, for you to consider seeking redress and justice in the Court of law. To the perpetrators who have been roaming free, you may have gotten away with your conduct in the past. Now you have to think again before setting yourself on your next victim for sexual harassment as it may no longer be just a bit of fun; you will have to bear the consequences if the victims speak up. You may now be held liable for damages predicated on sexual harassment.
By Allison Ong (view profile)
Partner, Azman Davidson & Co (General litigation, Employment law)
+603 2164 0200 (ext no. 181)